C2005/1979, Transcript of Proceedings [2005] AIRCTrans 737 (24 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10900

COMMISSIONER WHELAN

C2005/1979

s.170LW - application for settlement of dispute (certification of agreement)

CPSU, the Community and Public Sector Union
and
Department of Education and Training
(C2005/1979)
Victorian Government Schools - School Services Officers Agreement 2001

MELBOURNE

2.05PM, TUESDAY, 15 MARCH 2005

PN1

MS D HILL: I appear on behalf of the CPSU and with me today is
MS C KELLY.

PN2

MR I HOLINGWORTH: I appear for the Department of Education, together with MR A BULL and MS F BRENNAN.

PN3

THE COMMISSIONER: Ms Hill?

PN4

MS HILL: Thank you, Commissioner. Yes, by way of background, Commissioner, this matter was before the Commission on 27 January 2004 before Senior Deputy President Ives. I'll give you a bit of background before I go through what happened at that hearing and then let you know what's happened since. Carol Kelly was employed by the Department of Education and Training since October 1986, which is just on 19 years. She has an excellent employment performance record. She gained a position at the Canterbury Girls Secondary College as the business manager, which is an SSO6 classification, which is a fairly senior role. It wasn't exactly a come-down for her to take that role, but she had had fairly cutting-edge sort of positions in the department prior to taking up that role.

PN5

A lot of the tasks that were necessary for the role were not new to her. Clearly, that role doesn't take in a great deal of admin work, it is really that of the business manager role and there are other staff doing the administrative tasks. The position had been vacant for some time when Ms Kelly took the position up. There was a huge backlog of things for Carol to do once she arrived. Just as an example, there was $9,000 sitting in the safe which no one knew what to do with. So it's just been sitting there for quite some time and of course, these are the sorts of responsibilities that business managers do. So Carol started to clear the back log. We have a principal there by the name Naridem Pearce, and she appeared to become to be a very difficult person to deal with. It wasn't that long in Carol arriving at the school that she learnt that there had been problems in the past with the principal.

PN6

In fact, the teachers of the school had passed a no-confidence motion, and which resulted in the principal having to be counselled and take long service leave because of the stress of that situation. Carol says that Ms Pearce's style was intimidatory, but also very secretive. She had a hands-on role, quite controlling in her view, and looked over her shoulder a lot of the time and nit-picked a lot of the things that she was doing, and there seemed to be no consistency in her approach. If Carol did something one way, she was criticised for that. And yet if she did it the other way, she was criticised for that also. And also, a lot of the snide comments and back fighting, flippant comments that came back to her by other staff members. So therefore, Carol wasn't allowed to show much initiative in the role, or be able to just get on with doing her job. As I said, she was very capable performing, filling the needs of the role.

PN7

Anomalies in that role come up from time to time which need immediate, on the spot decisions. And after Carol would make one of those decisions, she once again would be criticised for it, but there would be no consistency. Carol had only been there in that job for 11 months when she was approached by the principal who, aggressively, I'm told, threw a parcel at her, which apparently arrived a week earlier and she'd intercepted it from one of the other admin staff. When it arrived at school, it had been addressed to Carol. As I said, it was intercepted and it was thrown to her and said, "Well, explain this". And it was a taxation issue with tax receipts and something in it of an accounting nature. So Carol did explain what that was about and why she'd asked for that information to be forwarded to her and what she anticipated what she was going to do with that information.

PN8

And she was told she was wrong. Carol indicated, Well, I'm not wrong. This is how we do it and this is how we've always done it, which our principal literally stamped her foot, went bright red in the face and said, I make the decisions around here, I'm not wrong, and with that she threw a letter of poor performance at her. So she'd been sitting on this parcel for a week waiting to pounce and then had a letter pre-drafted up to hand her. So it wouldn't matter what explanation she gave her, she was going to be in the wrong. Other exchanges occurred that day. Carol was so upset by that she contacted what they call Uptown, which is a department here in Melbourne, and said Look, this is just not good enough. She spoke with the mediation people up in town and of course they had clearly heard of Ms Pearce before, and gave her an idea of what she should do and where she should go.

PN9

School holidays arrived and the principal wasn't anywhere to be seen. Carol was so upset she went to her doctor and her doctor said, I'm not allowing you to go back there and work under this woman because of health reasons. So on that basis, Carol put in a WorkCover claim, and then we go along to WorkCover hearings. Now, of course her claim was rejected initially and then the hearings took place and the only defence Ms Pearce had was to say, Well, this isn't a WorkCover claim, it shouldn't be accepted, it's about poor performance. This is the first time, other than that day, that anything had been articulated to Carol about her performance. She'd never had anything in writing, there'd never been anything raised with her in an official or formal way. The outcome of the WorkCover case was that the claim was to be accepted. It was directed that the insurer had to pay her, pay Carol, to be on WorkCover because there was no evidence of any poor performance whatsoever.

PN10

Whilst on WorkCover, Carol wanted the bullying and harassment behaviours that she felt were vital to this whole issue, she wanted them dealt with in a proper and formal way. So she raised them, and I understand from my colleagues back at the union office that they went through proper grievance dispute resolution process. Carol applied to go to the Merit Protection Board - and Commissioner, that is the place where most disputes and grievances go for the Department of Education - and her application was rejected because the Merit Protection Board felt that the complaint was outside of their jurisdictional scope. So the matter was then lodged in this Commission. And Deputy President Ives, having heard the submissions given by the parties, directed the parties to have Carol's complaints heard in a proper way so as to provide her with procedural fairness and believed that the department could not be a complainant judge and jury.

PN11

He directed the department to negotiate with us and find a way to give Carol a fair hearing. Discussions did occur between The CPSU and the employer, but I understand did not go too far in being able to come up with a reasonable way forward to have Carol's concerns heard. Carol then wrote to the ombudsman and as a result of the ombudsman receiving her complaint, that the department were directed to investigate. And I'd like to hand up a copy of the submission that Carol made to the ombudsman. I've handed that up, Commissioner, simply because I've given you a fairly vague summary today of the background leading up to today. This document summarises some of the more in depth things that were going on at the time and why she wanted her complaints of bullying and harassment to be heard in a formal way.

PN12

And she sites a whole range of incidents that had occurred as to why she wanted to do that. It also covers the WorkCover situation and what happened there, talks about the Industrial Relations Commission and so forth, so I've handed that up just by way of some information. So then we had an investigation to occur, and a Mr Martin Winfield was given the job of investigating the complaints and interviewing key people, which he would then compile into a report and that would then be considered. Carol's interview with this Martin Winfield took place on 29 July and was very positive. He'd indicated that she had a very good reputation and work history, he was pleased that she provided documentary evidence and details of incidents that had occurred and had indicated that he believed Ms Pearce had not followed correct procedures and was well aware that no evidence of any poor performance could be produced at the WorkCover hearing or had ever been produced by the principal at any stage.

PN13

So this Mr Winfield is bubbling along, doing his investigation and apparently he finishes it and he sends it to the region, and the regions say, we received a letter from a Ms Judge, who was the acting regional director indicating that she considered Mr Winfield's report, and that she had also considered Ms Pearce, the principal's, written response, and had formed the view that the complaint should be dismissed. I'd like to hand up a copy of that letter, Commissioner. A couple of points I'd like to make about it. We then, Commissioner, after receiving this letter, we asked to see copy of the report and the principal's written response which has led to this decision. And we were refused. And there were a number of exchanges that then occurred, both back and forth between the union office and the department.

PN14

And I'm glad Mr Bull is here today, because last Friday I believe a very aggressive telephone conversation occurred last Friday, when I received a call from Mr Bull, saying, "Well, we don't even know what you want and why do you want the report and get it through FOI?". And I got the impression all he wanted to do was have a fight with me. So rather than continue fighting over the phone, I did tell him to send me whatever he thinks is reasonable and I'll tell him whether it's acceptable to us or not. He was supposed to get me something on Friday, and I haven't received it as yet. So, Commissioner, we have an investigation which results in a secret report, a principal, we suspect, still trying to lead to poor performance with no evidence contributing to the secret report, a senior person in the eastern region making the call that the complaint should be dismissed based on the secret report, and they won't let anyone see the secret report.

PN15

They call that procedural fairness and actual justice, and what it does, it gives the principal the right to say anything she likes without being challenged. Carol has raised serious allegations about bullying and harassment and has been denied the right to have her concerns heard and considered in a proper way because we have no idea who Mr Winfield spoke to and what led Ms Judge to the decision she took. And clearly, we say that lacks procedural fairness. Commissioner, there has been an application filed with the FOI, but we shouldn't have to go there by freedom of information. It's just another form of the treatment Ms Kelly has endured over the last 12 months. And she's due to go off her full payments of WorkCover.

PN16

There are a couple of issues that we are seeking from the Commission and I have drafted up a summons to witness to produce if that's necessary, because we are seeking the full report and all of the documentations that led Ms Judge to the decision she took, because we think clearly she's wrong, if she's come down with a decision that there was no case to answer, or it should be dismissed. But clearly, as a result of this dispute, we seek as an outcome that if there is any reference to unsatisfactory performance on Carol's personal file it should be immediately removed as it is incorrect and completely fabricated and certainly has not been proved. Two, that the department should generally re-deploy Carol to a position at a comparable classification within the department. As Carol's WorkCover payments would soon be reduced, the department need to find her a reasonable alternative position very quickly.

PN17

Three, that Carol is never to work under Ms Pearce under any circumstances, and that can be supported by the doctors. I might just mention here that Ms Kelly is seeing a psychologist once a week, and that's after 19 years in this department. I think that's disgraceful. And four, we're seeking a copy of the full Martin Winfield report along with the written contribution provided by Ms Pearce of the investigation and any other materials that were relied upon to form the view that she formed. And as I said, Commissioner, I do have, I have prepared a summons to produce which I would like to hand up. I might leave it there for a moment, Commissioner, to see what my friend here has to say. I believe he may want to go to private conference. If the Commission pleases.

PN18

THE COMMISSIONER: Thanks Ms Hill. Mr Holingworth.

PN19

MR HOLINGWORTH: Commissioner, look, you've had a lot of background on this matter and I probably, just for the record, would like to say that we have invited the principal of Canterbury Girls Secondary College along today. So we have no response to that in the sense that we understood this matter to be about information that related to the claims and procedures. And that's what we've come along and prepared for today. Commissioner, I raise with you a matter, and I really probably don't want to go into it in much detail because I would like to go into conference, but I want to raise with you a matter about the application of the grievance procedures in respect to this matter being before the Commission at this point, when in fact the next stage in these processes is the Merit Protection Board's. There are some issues surrounding Ms Kelly's previous application, but maybe we can go into those later. But the department does have a concern about the proper application of grievance procedures in terms of coming to the Commission.

PN20

THE COMMISSIONER: I think Ms Hill had indicated that the previous application for the Merit Protection Board had been rejected on jurisdictional grounds.

PN21

MR HOLINGWORTH: It had been rejected, Commissioner, on the basis that it wasn't rejected, they said they would not hear it until the unsatisfactory performance procedures were completed. So Ms Kelly was able to come back to the MPB. The issue about around this matter is that, of course, Ms Kelly hasn't been in the workplace. So the unsatisfactory performance procedures having commenced, in fact. The other issue that I would like to put on the record is the fact that Ms Hill made the claim that the ombudsman directed our office to investigate the matter. In fact, our records of enquiry was that the ombudsman contacted our office and subsequent to that Ms Kelly was advised by the ombudsman that she should make application or lodge a complaint in respect to the matter in line with our complaints procedures, which I would like to hand up to you, your Honour.

PN22

One of the things, Commissioner, I would like to take you to in that, as I say, we can have a discussion about that in conference, but I think it's important that we do so, that these are the complaints procedures that the department has in place. When anyone has a complaint, that could be parent, a student, staff member, against anyone. Now, they are very carefully designed to ensure that there is a process, particularly in this case where it's an employee against their principal, that it's handled separate from the principal themselves. But I want to address, I probably, Commissioner, I want to take you directly to the claim here in respect to the report that's being sought. And I'll take you to page 33 of that document. At the bottom documentation, and I'll read it, Commissioner, for the sake of the record. It says:

PN23

Documents relating to a complaint should be placed by the designated officer in a sealed envelope.

PN24

This is Mr Winfield that's been referred to.

PN25

Marked authorised access only and filed on the principal class officer's personal file.

PN26

This is a complaint against a principal:

PN27

Generally the designated officer are the persons authorized by the director of schools with only access to these documents as they may contain information ...(reads)...Designated officers are responsible for ensuring that all documents are handled with absolute confidentiality.

PN28

So, Commissioner, what I want to say is that there is an application for that report, freedom of information, and that was lodged on 23 February. It is a 45 day time frame for the processing of that application. I am in no way here today, can interfere with any of the processes of the legislation that relates to freedom of information. And I think in terms of any documents that are being sought through that process, through the freedom of information process I'm sorry, should be allowed to be tested against the requirements of the freedom of information legislation. Beyond that, Commissioner, I can't add anymore and would perhaps recommend that we go into conference. Thank you, Commissioner.

PN29

THE COMMISSIONER: Ms Hill, did you want to say anything before we went into conference?

PN30

MS HILL: Just a couple of things. I'm concerned about the comment that I understand there's been two applications to the Merit Protection Board and both have been rejected for jurisdictional issues. It's news to us that there is, that Ms Kelly is to go back to await unsatisfactory performance allegations, which they couldn't prove before she went on WorkCover, so I don't know how they can prove it while she's been at home. But quite frankly, Mr Holingworth's argument that this matter hasn't been exhausted, the grievance process hasn't been exhausted, I think it's just simply wrong. That if the Merit Protection Board, on two occasions, won't hear this matter then clearly there needs to be some process and some place for Ms Kelly to have her bullying and harassment matters dealt with. This isn't about her work performance. This is about being bullied and harassed.

PN31

And every time there's any explanation, it seems that the department try to turn it around to be in some way Ms Kelly having to defend her performance, when she's never had to defend it in 19 years. The other point I just would like to make is that regardless of whether there is an application via the freedom of information, that isn't something that Mr Holingworth should concern himself with. Quite frankly, we believe that we're entitled to see those results of a complaint and a report of a complaint that was made by my member and we would like to see what contributions were made and taken into consideration. Now, whether Mr Holingworth says that that goes against their handbook, I don't particularly care whether it goes against the handbook. I'm more interested in having some procedural fairness. So, Commissioner, I am happy, having said that, to go into conference.

PN32

THE COMMISSIONER: Thanks Ms Hill. We'll go off the record at this stage.

<NO FURTHER PROCEEDINGS RECORDED